Academic journal article Texas Law Review

A Horizontal Federalism Solution to the Management of Interstate Aquifers: Considering an Interstate Compact for the High Plains Aquifer*

Academic journal article Texas Law Review

A Horizontal Federalism Solution to the Management of Interstate Aquifers: Considering an Interstate Compact for the High Plains Aquifer*

Article excerpt

I. Introduction

This Note focuses on the tremendous problems with the current management of the High Plains Aquifer - the largest aquifer in the continental United States and a critical source of water for agriculture and other American industries.' The aquifer underlies portions of eight states,2 and thus it is currently governed by eight very different and sometimes conflicting groundwater regimes. This governance structure has not been up to the task - the aquifer, which is essential to our country's agriculture industry, is now in jeopardy of depletion within only a few decades.3

This Note proposes a new management scheme for the High Plains Aquifer that derives from the principles of horizontal federalism4 - an interstate groundwater compact. There are currently no compacts governing interstate aquifers,5 and there has been no serious discussion or proposal of this type of governance scheme for interstate aquifers.6 But compacts are commonly used for managing other types of interstate water resources,7 and I suggest that the interstate compact for the High Plains Aquifer be modeled according to a particular eastern river-basin compact, as opposed to the western interstate river compacts that are commonplace in the western United States.8 At the same time, I do not advocate for the rote adoption of just any interstate compact. Instead, I will suggest modifications to these easternstyle river-basin compacts that I find faithful to principles of horizontal federalism, such as providing opportunities for an attractive form of local decisional input in order to satisfy local interests.

Throughout this Note I suggest a new governance scheme for the High Plains Aquifer, yet many if not all of these suggestions may be applicable to any of the numerous interstate aquifers in the United States.9 Therefore, while I do not argue for implementation of interstate compacts for any and all transboundary domestic aquifers, these principles should be helpful for other interstate aquifers also in need of new management regimes.

The organization of this Note will be as follows: In Part II, I will briefly explain the important characteristics of the High Plains Aquifer and how the aquifer is threatened with imminent depletion. I will then explain the current management scheme within the aquifer - the various groundwater doctrines for each of the overlying eight states.

In Part III, I will develop my argument that a change in the governance scheme is needed. I start with the presumption that a governance scheme for a vital resource like groundwater should promote goals of equitable and sustainable use of that resource. I then argue that in interstate aquifers, such as the High Plains Aquifer, these goals are not being promoted for two main reasons - the current management scheme allows negative externalities and is administratively inefficient.

Then, in Part IV, I suggest that a new scheme should be adopted according to the principles of horizontal federalism. I explain why an interstate compact is preferable to other horizontal-federalism solutions, and then I explain the principles and current uses of interstate compacts.

Finally, in Part V, I argue that an interstate compact is the best solution for a management scheme in the High Plains Aquifer. I will show how an interstate compact will promote equitable and sustainable use of the aquifer, and alleviate concerns present in the current governance scheme of the aquifer. I will make specific recommendations that an interstate compact for the High Plains Aquifer should consider, and then I will address potential questions and concerns for an interstate groundwater compact.

II. The High Plains Aquifer and Its Governing Authorities

A. The High Plains Aquifer

The High Plains Aquifer is the largest aquifer in the continental United States,10 and it spans eight states: Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming. …

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